Citation Nr: 1003370 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 07-28 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for bilateral shoulder disabilities. 2. Entitlement to service connection for bilateral knee disabilities. 3. Entitlement to service connection for bilateral ankle disabilities. 4. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of T12. 5. Entitlement to an evaluation in excess of 10 percent for residuals of S1 nerve root compression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1981 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision by the Sioux Falls, South Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA). An increased 20 percent rating for the Veteran's service-connected degenerative joint disease of the lumbar spine was granted in June 2003 and in his June 2003 VA Form 9 the Veteran indicated he did not wish to perfect his appeal as to this issue. The issue of entitlement to an increased rating for degenerative joint disease of the lumbar spine is fully resolved and the Board has no appellate jurisdiction over this matter. A review of the record reveals that a February 2007 Board decision as to the remaining issues on appeal was vacated by the Board in October 2007 based upon the timely receipt of a request to reschedule a personal hearing. The case was remanded to the RO to reschedule the Veteran for a videoconference hearing in October 2007. The Veteran subsequently expressed his desire for a hearing before a hearing officer at the RO in lieu of a Board hearing. VA records show a hearing was held in April 2008. The issues on appeal have been appropriately developed for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. Bilateral shoulder disabilities were not manifest during active service and are not shown to have developed as a result of an established event, injury, or disease during active service. 3. Bilateral knee disabilities were not manifest during active service and are not shown to have developed as a result of an established event, injury, or disease during active service nor as a result of a service-connected disability. 4. Bilateral ankle disabilities were not manifest during active service and are not shown to have developed as a result of an established event, injury, or disease during active service. 5. Degenerative joint disease at T12 is manifested by no more than severe limitation of dorsal spine motion; there is no evidence of forward flexion of the thoracolumbar spine less than 30 degrees, including as a result of pain or dysfunction, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 6. The residuals of S1 nerve root compression are manifested by no more than mild symptoms of incomplete paralysis of the left common peroneal nerve. CONCLUSIONS OF LAW 1. Bilateral shoulder disabilities were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 2. Bilateral knee disabilities were not incurred in or aggravated by service nor as a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 3. Bilateral ankle disabilities were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 4. The criteria for a rating in excess of 10 percent for spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243, 5291 (before and after September 23, 2003). 5. The criteria for a rating in excess of 10 percent for the residuals of S1 nerve root compression have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.124a, Diagnostic Codes 8521 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the Veteran in letters from the RO dated in November 2002, December 2005, and May 2008. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." 73 Fed. Reg. 23,353-23,356 (Apr. 30, 2008). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The Veteran was afforded VA examinations in December 2002, July 2006, and April 2008. 38 C.F.R. § 3.159(c)(4). Although the Veteran and his service representative have asserted that the April 2008 VA examination was improper and was conducted without a review of the claims file, the Board finds no merit to this claim. It is significant to note that the April 2008 examiner noted that the claims folder was reviewed and, in fact, specifically referred to a March 2008 private medical report included in the Veteran's claim file. While the December 2002 VA examiner noted the available record at that time did not include most of the Veteran's service treatment records, the examiner elicited a medical history from the Veteran that is consistent with the records subsequently added to the claims file and the examiner provided no opinions inconsistent with the evidence contained in those records. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are predicated on a substantial review of the claims folder and the medical records contained therein; contain a description of the history of the disabilities at issue; document and consider the Veteran's complaints and symptoms; and provide relevant medical opinions with adequate rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board notes that post-service TRICARE records dated in June 2003 show the Veteran was approved for a specialty appointment for a magnetic resonance imaging (MRI) scan of his left knee, but that the records submitted by the Veteran in support of his claims do not include a copy of that report. A review of the record also reveals that the Veteran was adequately notified of his responsibility to provide information in support of his claims and that in correspondence dated in December 2008 he stated he had no other information or evidence to submit. He was notified that with authorization VA would assist him in obtaining copies of medical reports in support of his claims, but he provided no such authorization. The Court has held that VA's "duty to assist is not always a one-way street" and that if a claimant wishes help he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds that further attempts to obtain additional evidence would be futile. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claims would not cause any prejudice to the appellant. Service Connection Claims Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection can be granted for certain diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. Where a veteran served 90 days or more of continuous, active military service during a period of war and certain chronic diseases become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a) (2009). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). The Federal Circuit has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issues of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2009). Bilateral Shoulder Disabilities Factual Background and Analysis Service treatment records dated in February 1994 show the Veteran complained of a two month history of intermittent, non-radiating pain in the right shoulder. The examiner noted a full range of motion with crepitus in each shoulder. There was some tenderness in the acromioclavicular joint of the right shoulder on extension. A June 2001 contract neurosurgical examination report noted the Veteran denied any musculoskeletal pain, swelling, or stiffness in his upper extremities. Physical examination of the upper extremities revealed full range of motion without pain or crepitation. Palpation revealed no tenderness, effusion, or defects. There was intact stability of the joints. There was normal muscle tone and strength and sensation were intact. On VA examination in December 2002 the Veteran reported he was treated for contusions to the shoulders in the early 1980's while parachuting. He stated he was in a sling for about two days and was returned to duty. He complained of a dull, burning-type pain, right more than left, with flare-ups of more severe shoulder pain lasting from one and a half to five hours about 22 days a month. The examiner noted there was good range of motion bilaterally on flexion, extension, and adduction. There was no swelling or discoloration. There was no pain on palpation and no evidence of fatigue, weakness, incoordination, or additional range of motion loss on repetitive motion testing. X-ray examination of the shoulders was negative. The diagnoses included a history of bilateral shoulder contusions in the early 1980's with normal present X-ray and physical examinations. Private medical records dated in January 2008 show the Veteran complained of some pain into the shoulder which radiated up to his neck. No opinion as to a shoulder disorder was provided. At his hearing in April 2008 the Veteran testified that he had strained his shoulders during active service, but that it had not really bothered him. He stated that he had not received a diagnosis of a chronic shoulder disability and that he had not been treated for a shoulder problem since active service. Based upon the evidence of record, the Board finds that bilateral shoulder disabilities were not manifest during active service and are not shown to have developed as a result of an established event, injury, or disease during active service. Although the Veteran has reported shoulder pain that has persisted since active service, there is no probative evidence of any present right or left shoulder disability. The Court has held that a claimant's statements as to subjective symptomatology alone (such as pain), without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds by 259 F.3d 1356 (Fed. Cir. 2001). Therefore, entitlement to service connection for bilateral shoulder disabilities must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim. Bilateral Knee Disabilities Factual Background and Analysis Service treatment records show that in September 1983 the Veteran complained of bilateral knee pain. The examiner noted there was no limitation of motion, discoloration, or swelling. There was some crepitus to the left knee, but the Veteran was able to stoop and perform deep knee bends without problem. Records show he complained of a three day history of left knee pain post injury. The examiner noted mild ecchymosis to the patella. There was normal range of motion without pain and no evidence of tenderness or ligamentous laxity. A diagnosis of left knee contusion was provided. An August 1987 examiner noted a full range of motion of the knees and provided an assessment of bilateral chondromalacia of the patella. A February 1994 report noted complaint of right knee pain that was worse with twisting motions. An examination revealed no evidence of masses, fluid, tenderness, or crepitus under the patella. The collateral ligaments were stable and there was a negative drawer sign. The diagnoses included musculoskeletal pain in the right knee. Physical therapy records dated in January 1997 noted complaints of medial compartment right knee pain and a subsequent twisting re-injury to the right knee. The diagnoses included Grade I medial collateral ligament injury and rule out pes bursitis. A February 1997 report noted pain was 90 percent resolved with no new complaints of intrapatellar pain or sense of giving way. The examiner stated that the anterior cruciate ligaments were clear and that there was no swelling. The examination was negative. A March 1997 report noted the Veteran complained of inferior pole pain to the right patella. A subsequent March 1997 report noted the knee was not popping or giving out and that there had been no inferior pole pain for one week. The goals of physical therapy were considered to have been attained. A February 1999 report noted the Veteran complained of a three day history of left knee pain which was onset after walking. He denied any recent injury. An examination of the left knee revealed tenderness to the medial proximal patella, with no evidence of effusion or swelling. Drawer and varus/valgus signs were negative. The examiner's assessment was left knee pain of uncertain etiology possibly secondary to chondromalacia or arthritis. A June 2001 contract neurosurgical examination report noted the Veteran denied any musculoskeletal pain, swelling, or stiffness in his lower extremities. Physical examination revealed full range of motion without pain or crepitation. Palpation revealed no tenderness, effusion, or defects. There was intact stability of the joints. Muscle tone was normal and strength and sensation were intact. On VA examination in December 2002 the Veteran complained of chronic knee pain since approximately 1983. He reported flare-ups of pain in his right knee about once a month and about 18 times a month in the left knee. He stated there was no additional loss of motion with flare-ups, but that his left knee swelled and sometimes felt hot after standing or walking for more than a hour. Examination revealed no evidence of swelling, discoloration, or increased warmth. The ligaments were intact without laxity on stressing. There was no crepitation with patella pressure and no tenderness on McMurray's testing. Range of motion was normal without wincing or grimacing. Active range of right knee motion was from 2 to 120 degrees and passive motion was from 0 to 130 degrees. Active range of left knee motion was from 0 to 118 degrees and passive motion was from 0 to 120 degrees. The Veteran performed five half squats without evidence of pain, fatigue, weakness, incoordination, or additional loss of range of motion. The examiner noted the Veteran's complaints of bilateral knee pain, but stated that as clinical and X-ray examinations were normal a diagnosis for his knee problems could not be provided. Post-service treatment records from Ellsworth Air Force Base dated in June 2003 show the Veteran complained of left knee pain when walking and standing that was intermittent over the past year and constant and worsening over the past six months. He stated the knee buckled and gave out. He reported a sharp ache to the medial knee and sharp stabbing pain behind the patella. A history of a twisting injury climbing off a ladder in 1996 was noted. The examiner noted the Veteran walked with an antalgic gait. Range of left knee motion was from 0 to 135 degrees. There was no evidence of effusion or laxity of the patella. There was positive crepitus and mild medial and infrapatellar tendon tenderness. McMurray's testing was positive with pain and a clunk over the medial compartment. Lachman's and drawer signs were normal. Strength was 5/5, bilaterally. The diagnoses included left knee pain and a positive McMurray's sign. The treatment plan included an MRI to rule out meniscal injury. In a request for an MRI study for evaluation of medical meniscal injury the examiner noted a six-year history of left knee pain with daily giving out. A subsequent June 2003 X- ray examination report noted a normal left knee. There was no evidence of significant bony, articular, or soft tissue abnormality. Private treatment records dated in September 2007 show the Veteran reported he had injured his left knee approximately one week earlier stepping off a deck and that he heard a pop under the knee cap. It was noted that he was seen in the emergency room and that X-ray studies had been normal, but that he continued to have locking sensations and decreased leg flexion. Physical examination revealed no edema or joint effusion. No crepitus was felt. Active range of motion revealed flexion to about 20 degrees. Lachman's and drawer signs were negative. There was difficulty with McMurray's testing due to guarding, but the collateral ligaments appeared to be intact to applied varus and valgus stress. The diagnosis was patellar tendon strain. A November 2007 report noted that approximately three days earlier the Veteran slipped getting off a ladder and since had felt pain and locking in the knee. The diagnoses included probable left knee meniscal tear. A November 2007 MRI revealed traumatic injuries to the proximal tibia and the lateral tibial plateau with nondisplaced fractures as well as what appeared to be an acute tear of the anterior cruciate ligament. Records show the Veteran underwent left knee arthroscopy with anterior cruciate ligament reconstruction in March 2008. It was noted that an MRI scan demonstrated what appeared to be an acute disruption of the anterior cruciate ligament. The operation report noted that scope of the medial compartment also revealed superficial grade 1-2 chondral changes involving the lateral and weightbearing portion of the medial femoral condyle. At his personal hearing in April 2008 the Veteran testified that he had been treated for knee problems during active service. He reported, in essence, that at the time he sustained his recent anterior cruciate ligament tear he was not been engaged in any strenuous activity and he asserted that the ligament had been weakened by prior damage. He stated that he did not know how he incurred nondisplaced fractures noted by his private physician, but that he had fallen hitting his knees a few times. In a subsequent statement the Veteran's employer noted that he had missed work due to back and knee problems and expressed her belief that these had been ongoing problems since active service. On VA examination in April 2008 the Veteran reported that he sustained a left anterior cruciate ligament injury about a year earlier while doing some light repairs on a deck. He stated there were no stairs and that he felt pain in his left knee when he stepped up on the deck about 18 inches from the ground. He reported that he had experienced pain in his knees for years. The examiner noted the Veteran wore a left knee brace and walked with a limp on the left leg due to his recent knee surgery. It was the opinion of the examiner that the Veteran's left knee disorder was not caused or aggravated by his back disability. It was noted that the mechanism of the injury described did not indicate that any back symptoms caused the injury and the fact that he was performing light repairs on a deck indicated his back allowed him to be reasonably active at that time. It was further noted that the medical evidence of record did not indicate any relationship between a back disability and the knee injury and did not describe any gait disturbance due to the back. Based upon the evidence of record, the Board finds that bilateral knee disabilities were not manifest during active service and are not shown to have developed as a result of an established event, injury, or disease during active service nor as a result of a service-connected disability. Although the Veteran was treated for left and right knee injuries during active service, there is no evidence of a chronic knee disorder having been manifest during active service and no probative evidence indicating that any present right or left knee disability was incurred as a result of an incident of active service. There is no evidence of arthritis to the knees manifest within the first post-service year. A February 1999 service treatment report noted left knee pain of uncertain etiology possibly secondary to chondromalacia or arthritis; however, X-ray examinations in December 2002 and June 2003 were negative. The December 2002 VA examiner also found no pathological basis on physical or X-ray examination to warrant a diagnosis for a knee disorder. Although the Veteran complained of problems with knee pain and giving out that had persisted since active service, the medical opinions provided in this case are considered to be persuasive. There is no probative evidence of a chronic knee disability for many years after service and treatment records demonstrate the Veteran sustained acute knee injuries after service. In fact, the November 2007 MRI and March 2008 operation reports described his anterior cruciate ligament tear as an acute injury. The Board notes that the November 2007 MRI report noted traumatic injuries to the proximal tibia and the lateral tibial plateau with nondisplaced fractures, but that no opinion was provided as to when those injuries might have been incurred. The March 2008 operation report noted that scope of the medial compartment revealed only superficial grade 1-2 chondral changes involving the lateral and weightbearing portion of the medial femoral condyle without any opinion as to etiology or date of onset. It is significant to note that records show the Veteran was approved for a private MRI study of his left knee in June 2003, but that there is no indication that the study was actually conducted. The Veteran did not provide copies of any reports of an associated study and did not provide authorization for VA to assist him in obtaining private medical records. The Board also finds that the opinion of the April 2008 VA examiner is persuasive that the Veteran's left knee disability was not incurred or aggravated as a result of a service-connected back disability. Therefore, entitlement to service connection for bilateral knee disabilities must be denied. The preponderance of the evidence in this case is against the Veteran's claim. Bilateral Ankle Disabilities Factual Background and Analysis Service treatment records show the Veteran was placed on temporary duty restrictions in September 1983 for a left ankle sprain and that he was treated for left ankle sprains in December 1983, July 1995, and December 1996. An examination of the ankle in July 1995 revealed good range of motion with no swelling or ecchymosis. Records show that in December 1996 he twisted his left ankle when he slipped on ice at a Texaco station. An examination revealed some point tenderness to the lateral malleolus and decreased motion. The ankle appeared grossly normal and there was no edema or joint instability. An X-ray study revealed no evidence of fracture. The diagnosis was left ankle sprain. A June 2001 contract neurosurgical examination report noted the Veteran denied any musculoskeletal pain, swelling, or stiffness in his lower extremities. Physical examination of the lower extremities revealed full range of motion without pain or crepitation. Palpation revealed no tenderness, effusion, or defects. There was intact stability of the joints. There was normal muscle tone and strength and sensation were intact. On VA examination in December 2002 the Veteran reported that he experienced recurrent bilateral ankle sprains in service. He stated that his ankles ached and that his ankles swelled when he was on his feet for more than an hour. He reported flare-ups about ten times per month lasting 30 minutes. Examination revealed no evidence of swelling, discoloration, or increased warmth in the ankles. There was no pain on palpation. Drawer sign was negative and heel-toe walking strength was good. Range of motion was good. For repetitive motion testing the Veteran walked 40 feet with no evidence of pain, fatigue, weakness, incoordination, or additional range of motion loss. X-rays of the ankles were negative. The diagnoses included a history of multiple right and left ankle inversion injuries with normal present X-ray and physical examinations. A July 2006 VA examination report noted strength testing including to the ankles revealed no weakness. In statements and personal hearing testimony the Veteran asserted that he had weak ankles that twisted rather easily. He stated the disorder had not improved since service, but that he had learned to watch his step. He testified that his left ankle gave out a couple of times per month and that his right ankle gave out about once every other month. He reported that since service he had not experienced an ankle sprain that required treatment by a doctor. He stated he self-treated his ankle sprains with pain-relief medication, ice, and an elastic bandage. He testified that he had not been provided a diagnosis of a chronic ankle disability. Based upon the evidence of record, the Board finds that bilateral ankle disabilities were not manifest during active service and are not shown to have developed as a result of an established event, injury, or disease during active service. Although the Veteran has reported ankle problems that have persisted since active service, there is no probative evidence of any present right or left ankle disability. The Board notes there is no medical evidence of a chronic ankle disorder and that examination in December 2002 revealed a good range of motion with no evidence of swelling, pain, weakness, incoordination, or abnormality shown by X-ray study. Therefore, entitlement to service connection for bilateral ankle disabilities must be denied. The preponderance of the evidence in this case is against the Veteran's claim. Increased Rating Claims Factual Background Service treatment records show that in 1985 the Veteran sustained a low back injury and that in 1986 he underwent a lumbar hemilaminectomy at L5-S1. A May 2001 MRI scan revealed no evidence of subluxation or instability of the lumbosacral spine, but there was some scarring around the left S1 nerve root and slight bulging at the T12-L1 level and the L4-5 and L5-S1 levels without any significant spinal cord or thecal sac compression. A private neurological examination in June 2001 revealed 5/5 strength in all muscle groups, bilateral muscle tone was equal and normal, and sensation was intact throughout the lower extremities. Deep tendon reflexes were equal and symmetric, Babinski's signs were negative, and there was no evidence of other pathological reflexes. An MRI study in August 2002 revealed chronic degenerative changes at the T12-L1 level with some posterior disc bulging and spur formation causing mild deformity on the thecal sac, but with no impingement on the disc cord. There was no significant compression of the nerve roots and only minimal deviation of the traversing left S1 nerve root. A September 2002 private neurosurgical consultation report noted normal strength, muscle tone, and deep tendon reflexes in the lower extremities. Straight leg raising, Romberg's, and Babinski's tests were negative. It was noted that the Veteran's gait was slightly antalgic. Tandem gait was normal and he was able to ambulate on his heels and toes without difficulty. A December 2002 VA examination report noted that the Veteran's available service treatment records appeared to be incomplete and that reports documenting his first 18 years of service were not in the file. It was noted, however, that pertinent records of recent treatment were included. A complete medical history was elicited from the Veteran. Upon examination the Veteran complained of a constant dull and deep sharp pain in his mid-lower back when bending or twisting in the wrong direction, when lifting greater than 20 pounds, or when walking greater than 300 yards. He also complained of a dull aching pain in his lower thoracic area around the T12 area when lifting 20 pounds or more or on repeated bending. He reported constant numbness in the legs, running down the lateral left leg to the foot and on the right leg to just below the knee, and reported occasional numbness and tingling in the right lateral area. He stated he had constant back pain with daily flare-ups lasting about an hour. It was noted he wore a back brace and used a TENS unit, as needed. The examiner noted that the Veteran was able to get on and off the examination table without assistance. Straight leg raising was positive with pain in the left lateral thigh and tenderness in the left thigh and calf areas at 55 degrees. Range of motion of the lumbar spine was good with pain at the end of all ranges of motion. Active range of motion tests revealed flexion from 0 to 65 degrees with passive flexion to 72 degrees, extension from 0 to 17 degrees with passive extension to 22 degrees, lateral flexion from 0 to 26 degrees on the right and from 0 to 30 degrees on the left with passive lateral flexion to 32 degrees and 35 degrees, respectively, and rotation to 35 degrees, bilaterally. The Veteran was able to heel and toe walk in place and was able to feel soft touch on all toes. On repetitive motion testing he performed five flexion and extension motions with no evidence of fatigue, weakness, incoordination, or additional range of motion loss. On neurological examination his gait and stance were normal. Deep tendon reflex testing revealed 2+ knee jerk, bilaterally, 2+ right ankle jerk, and 1+ left ankle jerk. Gait and turn around were strong, Romberg testing was normal, and he was able to tandem gait. The examiner noted he was well-muscled and that there was no evidence of atrophy. The diagnoses included degenerative joint disease of T12-L1 and L5-S1 disc disease with residuals of S1 nerve root compression manifested by decreased deep tendon reflex in the left ankle. In his February 2003 notice of disagreement the Veteran asserted that higher ratings were warranted for his back/spine disability. In a January 2006 statement his spouse reported that after his back injury and second surgery in 2001 the Veteran gradually stopped participating in family activities. She noted that activities like shopping, going out to movies, fishing, going out to dinner, and taking road trips had become too painful for him. She stated that he was in pain when he came home from work and was short-tempered. Many days after work he was unable to bend or walk and she had to assist his undressing and showering. She noted he had to quit a job he enjoyed for a less strenuous one, but that he was still unable to do things around the house he was once able to do. On VA examination in July 2006 the Veteran reported constant pain in the lumbar region and intermittent pain in the thoracic spine, primarily mid-line in the T10-12 areas. He described constant pain in the lumbar region that radiated down the posterior thighs to the feet with flare-ups twice per month often requiring that he miss work. He complained of numbness to the lateral aspect of the lower extremities with a sensation of weakness in the legs. He denied any bowel or bladder problems or any weight loss related to his back disability. He rated his low thoracic pain as six to seven on the Mankoski Pain Scale that bothered him two or three days a week and occurred with any lifting, bending, or twisting. A history of flare-ups or restriction of activities due to thoracic spine pain was not provided and the Veteran stated that his lumbar pain was the worse problem. It was noted he walked without use of any ambulatory aids, but that his spouse reported that he held onto furniture when walking around the house. The Veteran reported that he wore a back brace during flare-ups and about twice a week for pain. He also reported that had he changed jobs from construction to maintenance repair because of his back pain and that he currently worked 35 hours per week. He said that he could perform all of the duties required of his current job, but that he was unable to do much work around his house because of his back pain. He stated he could dress and undress himself, except during flare-ups, and that he limited his bending to putting on his shoes and socks. He reported that he had no functional difficulty driving his car, but that he had to get out of the car to rest for a few minutes every half hour or so. The examiner noted the Veteran walked without a limp and that he had mild to moderate difficulty getting up and down from the supine position on the examining table. It was noted he did not appear to be exaggerating his symptoms. There was mild tenderness to palpation over the thoracic and lumbar spine areas, but no paraspinal muscle spasms. Straight leg raising was positive on the right at 50 degrees and at 60 degrees on the left. Knee jerk was 2+, bilaterally, right ankle jerk was 1+, and left ankle jerk was absent. There was decreased sensation throughout the lower extremities, most noticeably, in the medial left leg area. Strength testing of the hips, knees, ankles, and great toes showed no weakness and there was no objective evidence of pain on motion of the back. Active range of motion testing revealed forward flexion from 0 to 50 degrees with pain at 50 degrees and passive flexion to 65 degrees without pain, extension from 0 to 15 degrees with pain at 15 degrees and passive extension to 20 degrees without pain, lateral flexion from 0 to 30 degrees, bilaterally, and rotation from 0 to 20 degrees with passive rotation to 25 degrees. There was no evidence of additional range of motion loss due to pain, weakness, incoordination, or fatigability with repeated motions. It was noted that the kenesiotherapist reported the Veteran terminated some of the passive range of motion testing due to subjective pain. The diagnoses included degenerative joint disease of the lower thoracic spine and degenerative joint and degenerative disc disease of the lumbar spine with residual radiculopathy manifested by absent left ankle jerk, pain, and numbness in the legs. In statements provided in support of the claim in September 2006 the Veteran's spouse, parents, friend, and daughter reported that his since his back injury during active service his quality of life and ability to participate in family activities had decreased. It was noted that he was unable to perform strenuous tasks around the home or engage in recreational activities with his family and friends. In an October 2006 statement the Veteran reported that he had constant lower back pain and radiating pain in the legs down into his feet with numbness down the legs into the feet. He stated weakness in the legs caused him to lose his balance on a regular basis and had resulted in falls. He complained of a progressive limp and an inability to walk, sit, or stand for more than a few minutes at a time. His back pain flared- up three to five times per week requiring bed rest, but he stated he was only able to take minimal time off from work. He stated he had altered his home and work activities because of back pain and reported that he was unable to participate in recreational activities he once enjoyed with his daughter and grandson. Private treatment records dated in February 2007 show the Veteran complained of an exacerbation of back pain while shoveling snow from the sidewalk. He reported that subsequent to a second back surgery in 2002 he had experienced numbness and discomfort down the right distal thigh and down the entire left S1 dermatome. He stated this had worsened a little, but there was nothing new as far as his pain. He denied bowel or bladder dysfunction. The physician noted the Veteran was in mild distress with pain, but that he was able to get up and down from the examination table without significant impairment. His gait and stance were normal. There was palpable tenderness over the low back from T12 to S1. The hip flexors, abductors, and adductors were normal. Forward flexion was to 90 degrees. Neurological examination revealed decreased to sharp and dull discrimination to the S1 dermatome of the left and normal on the right. Reflexes at the knees were 2+ and symmetric. The left ankle had no reflex and the right was 2+. His toes were down going. Motor examination revealed the extensor hallucis, peroneal longus, brevis, and anterior tibialis muscle were normal, bilaterally. A diagnosis of exacerbation of low back pain was provided. Private treatment records dated in March 2008 show the Veteran complained of chronic low back pain with recent onset of right leg pain to about the mid-portion of the lower leg. It was noted the right leg pain did not extend into the right foot. The physician stated there was palpable tenderness along the left paralumbar region. Forward flexion was only to approximately 90 degrees, but the Veteran was able to sit on the examination table with minimal discomfort. The sciatic notch was tender to palpation. Reflexes were absent on the left, possibility due to recent knee surgery, and 1+ on the right. Ankle reflexes were 1+, bilaterally. The toes were down going. There was good strength in the hip flexors, abductors, and adductors. The extensor hallucis longus demonstrated 3/5 weakness on the left great toe with no weakness on the right. The peroneal longus, brevis, and anterior tibialis muscle strength was 5/5 and symmetric. Sensation revealed decreased sharp and dull discrimination of the left foot with apparent intact sensation to the right foot. The diagnosis was muscle weakness associated with the extensor hallucis longus with sensory deficit consistent with an L5-S1 nerve root disease. It was noted that the weakness was longstanding, that numbness was worsening, and that pain waxed and waned. A March 2008 MRI scan of the lumbar spine revealed mild degenerative changes of the T12-L1, L2-3, and L4-5 disks without discrete disk herniation or evidence of neural impingement, postoperative changes at L5-S1 without evidence of recurrent or residual disk herniation or evidence of neural impingement, and a tiny T12 inferior endplate Schmorl's node at the posterior aspect of the inferior endplate showing some postcontrast enhancement suggestive that there may be an inflammatory reaction which could be symptomatic. At his April 2008 hearing the Veteran testified that he had begun to notice right foot drag. He complained of pain from the hip down the back of the leg into the heel and stated that he had learned to live with the pain. He reported that he did not receive regular treatment for his back disability because he believed nothing could be done to improve the disorder. His spouse testified that he had severe episodes of back pain and spasms and that he could no longer participate in family outings. In a subsequent statement the Veteran's employer since November 2005 noted he experienced problems due to back and knee pain with increased work absences. On VA examination in April 2008 the Veteran complained of constant pain in the lumbar region with intermittent radiating pain into the buttocks and down the back of the legs to the bottom of the feet. The leg pain occurred if he sat or stood too long or walked too far. He experienced back spasms spontaneously or due to activity and position changes. He stated he had not been prescribed bed rest for flare-ups, but that he had brief 20 to 30 periods of incapacitation. He complained of constant left lateral leg numbness into the foot and down the right leg to the ankle. He reported he did not have much weakness in the right leg. He stated he had left leg weakness and difficulty with dorsiflexion of the toe. He described the whole leg giving out and indicated this was sometimes related to spasm and sometimes not. The Veteran reported that he had pain in the lower thoracic spine area that bothered him three to four times per week. He stated his spasms in this area were not continuous and were not as problematic as his lumbar spasms. He stated his back problems were exacerbated by bending over the sink for five minutes, sitting for 20 or 30 minutes, and standing or walking from five to seven minutes. He stated he had difficulty sleeping and that he was careful not to lift too much. He used pain-relief medication daily and occasionally used a back corset and a TENS unit. He did not use any canes or crutches. It was noted he did not describe true bowel or bladder incontinence due to the back. He described his employment as involving light repairs and stated he limited his lifting on the job. He reported he was only working 35 hours per week and he stated that he did not want more hours because of his back problems. He stated his ability to engage in recreational activities and perform chores at home or do remodeling jobs were impaired. The examiner noted that the Veteran was wearing a left knee brace and walked with a limp due to his recent knee surgery. He had mild difficulty getting in and out of his chair and mild to moderate difficulty getting up and down from the supine position on the examination table. His stance was normal. There was mild tenderness to palpation over the lower lumbar spine and the left sacroiliac joint. No spasms were appreciated on standing, but it was noted that upon completion of he examination the Veteran complained of spasms requiring the assistance of his spouse putting on his socks and shoes. An examination of the thoracic spine revealed no tenderness to palpation and percussion and no thoracic paraspinous spasm. The sacroiliac joints were tender on the left and nontender on the right. The sacroiliac notches were nontender. Straight leg raise testing was negative. There was decreased sensation in the left medial and lateral leg and foot and in the lateral right leg. There was some decreased sensation to the dorsum of the right foot. Normal right medial lower leg sensation was described. Strength testing was normal in the hip and knee, except for a very mild limitation on the left due to surgery. Ankle flexion and extension strengths were normal, bilaterally. Left great toe dorsiflexion was mildly limited. Bilateral great toe plantar flexion and right great toe dorsiflexion were normal. Patella reflex on the right was normal and the left was not tested due to the recent surgery. Ankle reflex was 1 to 2+ on the right and absent on the left. Active range of motion studies of the lumbar spine revealed no wincing or grimacing or objective evidence of pain, but it was noted that the Veteran complained of pain at 45 degrees of flexion, 15 degrees of extension, and 20 degrees or lateral flexion and rotation. With repeated use he complained of additional pain and spasm in the low back requiring assistance putting his socks and shoes on, but the examiner noted there was no evidence of additional loss of motion or incoordination. The examiner also noted that during the 30 minutes the Veteran was interviewed he sat in his chair without evidence discomfort and did not shift his position excessively or stand up or otherwise exhibit discomfort with sitting for that length of time. It was further noted that a March 2008 private treatment report described back flexion to approximately 90 degrees. Kinesiotherapy range of motion studies revealed active lumbar flexion to 45 degrees, extension to 19 degree, right lateral flexion to 30 degrees, left lateral flexion to 30 degree, right rotation to 23 degrees, and left rotation to 18 degrees. The kinesiotherapist noted that the Veteran adamantly refused to allow passive range of motion testing of the lumbar spine stating that he was hurt from the previous examination. The examiner noted that she observed the kinesiotherapy range of motion studies. The diagnoses included T-12 and lumbar degenerative disk disease and left sciatica/radiculopathy manifested by loss of ankle reflex on the left and mild weakness on dorsiflexion of the left great toe. The examiner noted that the Veteran complained of right leg pain and decreased lateral sensation, but that these were subjective symptoms and that there was no objective evidence of any right leg sciatica. An August 2008 report noted the examiner stated that the left lower extremity disability involved the deep peroneal nerve. Private nerve conduction and electromyography (EMG) studies in September 2008 revealed normal nerve conduction studies to the left lower extremity peroneal and tibial nerves. The sural SNAP response was normal and needle examination of the left lower extremity showed large motor unit potentials in the left L5 innervated muscles. The remainder of the needle examination was normal. The study interpretation indicated findings showing evidence of an old left L5 radiculopathy with no evidence of ongoing denervation. It was noted that the findings were consistent with the previous history of an L5 radiculopathy and subsequent microdiscectomies. There was no evidence of a more diffuse peripheral neuropathy, lumbosacral plexopathy, or ongoing or acute lumbosacral radiculopathy. Laws and Regulations Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2009). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2009). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2009). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2009). The Federal Circuit has held that the weight and probity of evidence may be discounted in light of its own inherent characteristics and its relationship to other items of evidence. See Madden, 125 F.3d 1477. VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2009). During the pendency of this appeal, the spinal regulations were amended and the diagnostic codes renumbered effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). Where the law or regulations governing a claim are changed while the claim is pending the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 500 3 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 501 0 Arthritis, due to trauma, substantiated by X-ray findings: Rate as limitation of motion of affected part, as arthritis, degenerative. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2009). 5291 Spine, limitation of motion of, dorsal: Severe 10 Moderate 10 Slight 0 38 C.F.R. § 4.71a, Diagnostic Code 5292 (effective prior to September 26, 2003). 5293 Intervertebral disc syndrome: Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the past 12 months. 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 20 With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002). The renumbered and amended criteria for disabilities of the spine effective September 26, 2003, are as follows: The Spine 5235 Vertebral fracture or dislocation General Rating Formula 5236 Sacroiliac injury and weakness 5237 Lumbosacral or cervical strain 5238 Spinal stenosis 5239 Spondylolisthesis or segmental instability 5240 Ankylosing spondylitis 5241 Spinal fusion 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) 5243 ***Intervertebral disc syndrome ***Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under Sec. 4.25. General Rating Formula for Diseases and Injuries of the Spine: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): Ratin g With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note: (2) (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note: (3) In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note: (4) Round each range of motion measurement to the nearest five degrees. Note: (5) For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note: (6) Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a (effective September 26, 2003). Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes 524 3 Intervertebral disc syndrome Ratin g With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60 With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40 With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 Note (1): For purposes of evaluations under diagnostic code 5243 an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If intervertebral disc syndrome is present in more than one spinal segment provided that the effects in each spinal segment are clearly distinct evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a (effective September 26, 2003). 8521 External Popliteal Nerve (Common Peroneal). Paralysis of: Ratin g Complete; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes 40 Incomplete: Severe 30 Moderate 20 Mild 10 8621 Neuritis 8721 Neuralgia 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2009). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59 (2009). 38 C.F.R. § 4.71, Plate V (2009). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2009). "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). The regulations under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002) also provide separate ratings for chronic orthopedic and neurological manifestations of intervertebral disc syndrome. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral the rating should include the application of the bilateral factor. 38 C.F.R. § 4.124a (2009). If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. See Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero-percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability). T12 Degenerative Joint Disease As an initial matter, the Board notes that a 20 percent rating was granted for the Veteran's service-connected degenerative joint disease of the lumbar spine in June 2003 and that an appeal as to this issue was not perfected. The separate 10 percent ratings for the thoracic spine and S1 nerve root disabilities remaining on appeal are effective from September 25, 2002. The regulations pertaining to rating disabilities of the spine were amended September 26, 2003, and present claim must include consideration of the criteria effective before and after that revision. The applicable criteria for intervertebral disc syndrome effective prior to September 26, 2003, provided for the assignment of a rating for disabilities of the spine based limitation of motion of the cervical, dorsal (thoracic), and lumbar segments of the spine and allowed separate ratings for neurologic and orthopedic disability manifestations for intervertebral disc syndrome. It is significant to note that the September 26, 2003, revisions do not provide for separate ratings for dorsal (thoracic) and lumbar segments of the spine based limitation of motion. Although the rating determination for a service-connected degenerative joint disease of the lumbar spine disability has not been perfected for appellate review, the Board finds that the record is sufficiently developed for an adequate determination of the issue on appeal under the revised criteria for thoracolumbar spine limitation of motion. Based upon the applicable regulations and rating criteria effective prior to September 26, 2003, the Board finds the Veteran is presently receiving the maximum schedular rating for his service-connected degenerative joint disease at T12. The service-connected disability is manifested by no more than severe limitation of dorsal spine motion and there is no evidence of ankylosis or vertebral fracture to warrant a higher rating under alternative diagnostic codes. There is also no evidence of intervertebral disc syndrome specifically involving the dorsal spine and no probative evidence of any incapacitating episodes of intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. The Board further finds that under the regulations and rating criteria effective from September 26, 2003, there is no probative evidence of forward flexion of the thoracolumbar spine less than 30 degrees, including as a result of pain or dysfunction, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. The Veteran is, in fact, receiving a higher schedular rating for his service-connected limitation of motion of the dorsal and lumbar spines than is possible under the revised criteria for thoracolumbar spine limitation of motion. Therefore, entitlement to a schedular rating in excess of 10 percent for degenerative joint disease at T12 is not warranted. The preponderance of the evidence is against the Veteran's claim. S1 Nerve Root Compression Based upon the evidence of record, the Board finds the Veteran's residuals of S1 nerve root compression are manifested by no more than mild symptoms of incomplete paralysis of the left common peroneal nerve. Although the service-connected disability was previously rated under diagnostic code 8524, the April 2009 VA examiner's findings of peroneal nerve involvement indicates the criteria of diagnostic code 8521 are more appropriate. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). The relevant evidence of record pertaining to the claim for an increased rating for nerve damage includes clinical findings of some decreased sensation in the lower extremities and an absent left ankle jerk. There was no evidence of muscle wasting or atrophy and he has been shown to be able to walk on his toes and heels without difficulty. A February 2007 private treatment report noted decreased to sharp and dull discrimination to the S1 dermatome on the left and absent left ankle reflex, but the toes were down going and motor examination was normal. A March 2008 report revealed muscle weakness associated with the extensor hallucis longus with sensory deficit consistent with an L5-S1 nerve root disease and an MRI scan of the lumbar spine revealed only mild degenerative changes without evidence of neural impingement and a tiny T12 inferior endplate Schmorl's node at the posterior aspect of the inferior endplate suggestive of a symptomatic inflammatory reaction. The April 2008 VA examination revealed normal ankle flexion and extension strength with absent ankle reflex and mildly limited left great toe dorsiflexion. Great toe plantar flexion was normal. The diagnoses included T-12 and lumbar degenerative disk disease and left sciatica/radiculopathy manifested by loss of ankle reflex on the left and mild weakness on dorsiflexion of the left great toe. Records show the left lower extremity disability involved the deep peroneal nerve. The Board finds, however, that the September 2008 private nerve conduction and EMG studies indicating normal nerve conduction studies to the left lower extremity peroneal and tibial nerves are persuasive as to the present neurological impairment. Although the study findings showed evidence of an old left L5 radiculopathy, there was no evidence of ongoing denervation, a more diffuse peripheral neuropathy, lumbosacral plexopathy, or ongoing or acute lumbosacral radiculopathy. The Veteran's subject complaints indicative of a more severe nerve impairment are inconsistent with the objective clinical evidence of record. Therefore, a rating in excess of 10 percent for the residuals of S1 nerve root compression is not warranted. The preponderance of the evidence is against the Veteran's claim. The Board further finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to these service-connected disorders that would take the Veteran's case outside the norm so as to warrant an extraschedular rating. The service-connected disorders are adequately rated under the available schedular criteria. The objective findings of physical impairment are well documented. Although the record shows the Veteran experiences some difficulty with his present job, the Board finds the overall evidence of record is not indicative of a marked interference with employment. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for bilateral shoulder disabilities is denied. Entitlement to service connection for bilateral knee disabilities is denied. Entitlement to service connection for bilateral ankle disabilities is denied. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of T12 is denied. Entitlement to an evaluation in excess of 10 percent for residuals of S1 nerve root compression is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs